Citation Nr: 0019717
Decision Date: 07/27/00 Archive Date: 08/02/00
DOCKET NO. 99-24 537 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an effective date earlier than January 22,
1999 for a total evaluation for hearing loss.
2. Entitlement to an effective date earlier than October 6,
1998 for a grant of entitlement to a total disability
rating based on individual unemployability due to service
connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1943 to April
1946.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a May 1999 rating decision of the
Newark, New Jersey, Department of Veterans Affairs (VA)
Regional Office (RO).
The veteran testified at a hearing before the undersigned
member of the Board on May 10, 2000 and a copy of the
transcript of that hearing has been associated with the
record on appeal.
REMAND
Initially, the Board finds that the veteran's claims are well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). A well-grounded claim is one that is meritorious on
its own or capable of substantiation. Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990). Here, the veteran claims
entitlement to individual unemployability due to service-
connected disabilities for a period prior to October 6, 1998
and an increase prior to January 22, 1999 in the schedular
rating for his hearing loss. Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992) (where a veteran asserted that his
condition had worsened since the last time his claim for an
increased disability evaluation for a service-connected
disorder had been considered by VA, he established a well-
grounded claim for an increased rating); see Stanton v.
Brown, 5 Vet. App. 563, 570 (1993) (where appellant stated
that he could no longer seek or maintain employment in
letters and testimony prior to the BVA decision, he presented
a well-grounded claim for a total disability rating under
section 4.16(b)).
Because the claims are well grounded, VA has a duty to assist
the appellant in developing facts pertinent to the claims.
38 U.S.C. A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999);
Murphy v. Derwinski, 1 Vet. App. 78 (1990). This duty
includes attempting to obtain all pertinent medical records
and other evidence which has been called to VA's attention by
the veteran and by the evidence of record. Culver v.
Derwinski, 3 Vet. App. 292 (1992).
Here, the Board finds that the veteran testified that he
ceased working sometime in mid-1998, and he testified that he
received a VA audiological examination at the Allentown
Outpatient Clinic sometime in the fall of 1998.
Of course, the duty to assist does not require that VA
attempt to obtain all medical or other evidence, only that
"pertinent" or "relevant" to the claim. Voerth v. West,
13 Vet. App. 117, 121 (1999); 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.159 (1999). Here, the fall of 1998
audiological examination records and records relating to when
the veteran stopped working may be pertinent because VA
regulations governing the effective date of an award of
increased disability compensation provide that the effective
shall be the earliest date as of which it is ascertainable
that an increase in disability occurred, if the application
for such benefits was received within 1 year from such date.
Otherwise, the effective date is the date of receipt of
claim. 38 C.F.R. § 3.400(o)(2) (1999); 38 U.S.C.A. §
5110(b)(2) (West 1991). Hence, any additional facts
regarding the date at which the veteran became unable to
maintain employment due to his service-connected disabilities
may be pertinent to this case. Similarly, any additional
records of audiological examination performed in fall of 1998
may be able to establish an actual increase in the veteran's
hearing loss disability prior to January 22, 1999.
Therefore, the RO should attempt to gather any relevant
evidence regarding when the veteran stopped working, as well
as attempt to get any records of audiological testing
performed in Allentown in fall 1998.
In light of the above, further appellate consideration will
be deferred and the case is REMANDED to the RO for the
following development:
1. The veteran should be instructed to
provide all evidence related to when
he stopped working. This evidence
could include, among other things, tax
returns, pay stubs, business records,
and other similar evidence. A copy of
all evidence obtained should be
associated with the veteran's claims
folder.
2. The RO should request from the VA
Outpatient Clinic in Allentown, PA a
copy of all reports of audiometric
examinations related to the veteran,
especially any examination performed
in the fall of 1998. All records
obtained should be associated with the
claims folder.
3. Thereafter, the RO should review the
veteran's claim seeking entitlement to
an effective date earlier than October
6, 1998, for a grant of entitlement to
a total disability rating based on
individual unemployability due to
service-connected disabilities, based
on all the evidence in the claims
folder, as well as the veteran's claim
for an effective date earlier than
January 22, 1999 for a total rating
for hearing loss.
4. If the action on either claim is
adverse to the veteran, he and his
representative should be furnished a
Supplemental Statement of the Case
which summarizes the pertinent
evidence, fully cites the applicable
legal provisions, and reflects
detailed reasons and bases for the
decision reached.
Thereafter, the veteran and his representative should be
afforded the opportunity to respond thereto. The case should
then be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).